The Cuccinelli smokescreen: what the former AG’s state Supreme Court appointment could really mean

Update 3:03 PM 3/9: Sources close to Cuccinelli have said he’s already planning on not taking the nomination if it was formally offered – whether or not this means he plans to run for Governor again is yet to be seen.

Multiple sources: @KenCuccinelli takes name out of running for SCOVA election. Source: “Not the right time for his family” #scova#vagov

It’s been almost 24 hours an activists on either side of Virginia’s political spectrum have all but imploded upon hearing news of a possible appointment of the state’s former AG, Ken Cuccinelli, to the State Supreme Court.

But what does his appointment actually mean?

Conversations with some people close to the GA have given us some insight into what this plan could mean and how it could benefit the GOP in the most high-school-way possible.

This flew in the face of a promise made to former Lt. Gov. Bill Bowling who made a deal with our now disgraced former Gov. Bob McDonnell. McDonnell was to run for Gov. and then step up to support Bowling in 2013 – Cuccinelli had said he would run for AG again, but hadn’t ruled out a bid for Governor as well.

Sure enough, when the party switched to a convention, meaning the officials would be picked by delegates (more extreme members of the party) it knocked the more moderate Bowling out of the lead and put Cuccinelli front and center.

The Virginia Supreme Court has had a vacant seat since Judge Millette, appointed in 2008 by then Governor Tim Kaine, and confirmed by the GA in the same year, retired early, in July 2015. Because it was between GA sessions, Gov. McAuliffe appointed Judge Roush. Roush has served in the seat ever since.

The GA even held a special session to try and select a new judge, but failed to do so, carrying over the need into this 2016 session.

State Supreme Court Judges need to be approved by both the House and Senate, and the Governor only has the power to appoint judges when they leave the court between sessions. The final appointment still needs to be confirmed by the rest of VA’s elected bodies.

Yesterday’s announcement of Cuccinelli was a surprise to many, even the candidate himself – “I am humbled and honored to be considered for such a position, but it is not something that my wife and I have previously contemplated,” he told the Washington Post. “Together, we will prayerfully review this possibility.”, but all of this politicking could have a very specific purpose:

Keeping Cuccinelli off the 2017 ballot could allow a more traditional GOP candidate to run against the current Democratic nominee, Lt. Gov. Ralph Northam.

Further backing up this theory is Republican Senator Sturtevant refusing to vote for the GOP-lead Senate’s current candidate, Appeals Court Judge Rossie D. Alston Jr.. Sturtevant had said he wasn’t supporting Alston because he wanted to avoid “politicizing the court,” but he has since expressed support for Cuccinelli’s judicial bid – something that flies in the face of not politicizing the court.

Alston has a conservative record of his own, one anther GA source described as “even more conservative then Cuccinelli,” so another theory running around right now is Cuccinelli could be a kind of smokescreen which would allow the public to FLIP OUT for a bit before he steps down and the Senate settles on the lesser-known Alston.

But Sturtevant support for Cuccinelli does suggest a broader strategy which would allow for the GOP to put up a different 2017 candidate.

Maybe Cuccinelli’s appointment wouldn’t do that much damage?

A look at the history of the Supreme Court of Virginia shows the 11-judge panel isn’t as involved in social, headline grabbing issues. And the beauty of the judicial branch is they are one step in a much longer legal process. If Cuccinelli is appointed and he writes a majority opinion which could harm LGBTQ equality, there’s an appeals process opening the door for a different answer from a higher court.

He would also be one voice in 11, limiting his role to cases he’s appointed.

Either way, as much as I’ve covered LGBTQ issues here in Richmond, there’s been very few times the State Supreme Court has come up, and if it does, it’s usually just a stepping stone to a bigger court.

As attorney general, Cuccinelli famously challenged the Affordable Care Act. He lost. He challenged the EPA’s determination that greenhouse emissions contribute to climate change. He lost. He fought a years long battle to force a prominent climate scientist to release documents related to his research. And lost. He fought to preserve the same anti-sodomy law that he refused to fix in 2004. And lost. And he filed briefs defending the anti-gay Defense of Marriage Act. And lost.

Cuccinelli’s appointment might be a bit of a mystery to all those out-side the GOP backrooms. If he is appointed, it might make for an interesting 2017 race, and the same could be said if he isn’t.

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